Publisher Not At All Impressed By Trump's Defamation Threat Letter; Promises To Defend The First Amendment

from the good-luck-with-that dept

Last week we wrote about Donald Trump having a lawyer send out threatening letters to former top advisor Steve Bannon, author Michael Wolff and publisher Henry Holt & Co. over the publication of Wolff's new book, Fire and Fury about the Trump administration. The letter to Wolff and the publisher were notable for lacking a single statement that was actually claimed to be defamatory. As we've noted, that's often the hallmark of a completely bullshit defamation threat letter.

Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan -- the publishing giant that owns Henry Holt & Co. -- first sent a strong letter to employees noting that the company would not back down, and then lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse Davis Wright Tremaine sent quite the impressive letter responding to Trump's demand. It's worth reading in full. The summary:

My clients do not intend to cease publication, no such retraction will
occur, and no apology is warranted.

There's so much more worth quoting in the letter. It points out that Trump has the largest platform in the world to respond to anything he actually believes is false in the book. While the letter does not directly state this, the point is pretty clear. The point of defamation law is to be able to protect the powerless from having no recourse should they be defamed -- yet the President has plenty of power and can respond to anything that's actually wrong. But, tellingly, he has not done so.

As President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump
administration and campaign from May 2016 to this past October, and he conducted more than
200 interviews with President Trump, most members of his senior staff, and with many people
they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff's book.
We have no reason to doubt -- and your letter provides no reason to change this conclusion -- that
Mr. Wolff's book is an accurate report on events of vital public importance. Mr. Trump is the
President of the United States, with the "bully pulpit" at his disposal. To the extent he disputes
any statement in the book, he has the largest platform in the world to challenge it. Generalized
and abstract threats of libel do not provide any basis for President Trump's demand that Henry
Holt and Mr. Wolff withdraw the book from public discourse. Though your letter provides a
basic summary of New York libel law, tellingly, it stops short of identifying a single statement in
the book that is factually false or defamatory. Instead, the letter appears to be designed to silence
legitimate criticism. This is the antithesis of an actionable libel claim.

The response also points out that the letter misrepresents what Wolff claimed in order to suggest actual malice (kind of funny to see a misrepresentation being used to argue a defamatory misrepresentation...). Oh and also this:

To briefly address a few of the additional substantive claims identified in your letter, we
note that you understandably cite to New York as the governing law, yet we were surprised to
see that President Trump plans on asserting a claim for "false light invasion of privacy." As you
are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel.
Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884
F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it
is patently ridiculous to claim that the privacy of the President of the United States has been
violated by a book reporting on his campaign and his actions in office.

As for the claims that Wolff was "inducing" Steve Bannon and others to breach their contract:

Next, your letter focuses on alleged claims for tortious interference with contractual
relations and inducement of breach of contract. Yet, as your client will no doubt appreciate,
timing is everything when it comes to these claims. And there is no dispute that Mr. Bannon had
already communicated with Mr. Wolff freely and voluntarily well before the "notice" you have
provided. Mr. Bannon plainly needed no cajoling or inducement to speak candidly with Mr.
Wolff. And an after-the-fact lawyer's letter putting my clients "on notice" does not put the genie
back in the bottle, much less subject Henry Holt or Mr. Wolff to liability. The law treats sources
like Mr. Bannon as adults, and it is Mr. Bannon's responsibility -- not Henry Holt's or Mr.
Wolff's -- to honor any contractual obligations. Indeed, your attempt to use private contracts to
act as a blanket restriction on members of the government speaking to the press is a perversion of
contract law and a gross violation of the First Amendment. No court would support such an
attempt to silence public servants and the press.

The letter to employees is also worth reading as it talks up the importance of the First Amendment -- with citations and quotes from key important cases having to do with free speech and the First Amendment. As the letter concludes:

There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent.
We will not allow any president to achieve by intimidation what our Constitution precludes him or her
from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all
authors and all their books, now and in the future. And as citizens we must demand that President
Trump understand and abide by the First Amendment of our Constitution.

Re: This whole affair is a waste of time

Of course Sargent screamed "no capitulation" from the top of his soap box, because there's no better way to sell books than a cat fight.

Even if this is just for “show”, and I doubt that, the response is still worthwhile for being a pushback against any possible erosion of the First Amendment under a president who thinks every news network but Fox News should be tossed off the air because they do not continuously kiss his flabby orange ass.

Re: Re: do not continuously kiss his flabby orange ass

A flabby orange ass is normal for crested black Macaque;PETA Will defend Naruto.

Remember Sambo's Restaurants? Ronnie Reagan lamented that his neighbor Sam Battistone needed a federal bailout but Chapter 11 is more profitable; 'Sambo's' became 'Season's' became 'Bakers Square' became 'Godfather's pizza'.Ultimately, 1,200 restaurants were reduced to one, over the use of a word.

Drudge is very selecive in what gets featured. It is not afraid of running conspiracies and giving talking time to character assassinations as is the populist thing to do nowadays. Facts seem like a lower priority.

I would be very sceptical about some of the sources they are giving lip-service to and I certainly wouldn't rely solely on sir Hurt and sir Drudge to select my news.

The difference is that Trump thinks of fiction as 'fake news' and cannot discern what might differentiate between the two. So yes, Trump is worried about 'fake news' and fiction and satire and parody because they are all the same to him. They aren't 'his' truth, which is apparently exists only in his mind (except when he cajoles his cronies to support 'his' truth).

It's NOT a democracy, if it was, Hillary would be president. Of course these fucking idiots are too stupid to know that.The founding fathers intentionally setup the government to prevent Democracy from having a strong influence in our government. It's the reason citizens were not even originally allowed to even vote for the fucking president to begin with.

Next up... some fucking twat saying well we are "democratic" while the fact that district gerrymandering is still a thing.

I tell you what, go ahead and believe ignorant and stupid things, I can't stop you, just call you an idiot while you whine about being called one for being one!

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Disagree with facts do ya? Shame you need lies to get to sleep at night. Like I said... act like an idiot be called an idiot!

Here is the CIA world factbook for your edification. You may notice that the word "democracy" is not mentioned anywhere in what type of government we are. But hey, whatever your political religion tells you to believe in, it's not like anyone will call you an idiot for it.

Government :: UNITED STATESCountry name:conventional long form: United States of Americaconventional short form: United Statesabbreviation: US or USAetymology: the name America is derived from that of Amerigo VESPUCCI (1454-1512) - Italian explorer, navigator, and cartographer - using the Latin form of his name, Americus, feminized to AmericaGovernment type:constitutional federal republic

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No "FACTS" and the dictionary are what makes the statement untrue.

Look, I know you guys "emotionally need" to call things what they are not to sate your weird little politics but it makes it easy to keep you idiots fooled. If you don't like something your first trick is to try to change the definition of something. It makes you all looking like idiots.

If you don't like something you call it a name. If you need it to be something that it is not you start calling it that so people will think it IS that even when it isn't.

You see... you WANT America to be a democracy, and that is fine. You can want anything, you are just an idiot to think it is true despite, you know, pesky FACTS saying otherwise.

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The US is a constitutional republic, and many democratic values are enshrined in the constitution. The US is a democratic state, which, as you've pointed out, different than having a democracy.

However, just like the word "hacker," the word "democracy" has shifted meaning over time such that the democratic system with all its non-democratic checks and balances is commonly referred to as a democracy, to the ire and chagrin of pedants everywhere.

The US believes in the will of the people; it also believes that the people can be wrong, and so has things built into the constitutional framework to protect against fascism and the like.

Recently, with the help of computers, politicians have discovered ways to manipulate the existing system to avoid having to bow to the will of the people. Before computers, they did this through ignorance.

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No "FACTS" and the dictionary are what makes the statement untrue.

The facts, er, "FACTS" say that the US is a democracy. The dictionary says that the US is a democracy.

Wikipedia: United States: Government and politics: The United States is the world's oldest surviving federation. It is a representative democracy, "in which majority rule is tempered by minority rights protected by law".

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yea i know... there just exactly ZERO chance you guys are assholes too.

I developed this attitude because you all were assholes first.

My first posts way back when were not this hostile, but being called an idiot by a bunch of fucking idiots kinda sets the stage does it not?

So instead of bitching about my attitude you should have fixed yours first. Funny how that works? You start the problem and then get bent about it when you get it back. Turn about not fair play for ya? Awh come on big guy... I didn't mean to hurt your feelings. I just wanted to let you know that you were ignorant.

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Government :: UNITED STATESCountry name:conventional long form: United States of Americaconventional short form: United Statesabbreviation: US or USAetymology: the name America is derived from that of Amerigo VESPUCCI (1454-1512) - Italian explorer, navigator, and cartographer - using the Latin form of his name, Americus, feminized to AmericaGovernment type:constitutional federal republic

Notice that the word Democracy does not appear here? Notice that Hillary lost the election? Notice that you do not vote on laws and notice that elected representatives can tell you to fuck off after you vote them in?

Notice how you have ZERO democratic control of the government? You GET TOLD what you get! You don't vote for it, you don't get a single fucking say.

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The US is a democracy. That you can find someone doesn't happen to mention this (nor does it contradict the fact), does not make it untrue.

Few if any democracies involve the citizens directly voting on laws. Instead they vote in representatives (city councilors, congressmen, members of parliament, etc.) to do the job for them. If you don't like their decisions, you vote them out in the next election.

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It's actually on purpose, too. Back during the era of the Founding Fathers, "democracy" was synonymous with "mob rule."

Since educating every voter on every issue, then somehow assembling for a vote is still impossible, they preferred to have people elect someone they trust to parse the laws and regulations, then vote with their constituent's best interests at heart.

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That depends on who's listening.

The point of that argument as I understand it is that even if there are some people observing with whom he has not already destroyed any semblance of credibility, the practice described would tend to undermine his credibility with even those people.

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I am open to what you believe I am incorrect about but I appreciate the assist.

We don't control anything the federal government does at all. Not a single thing about it do we control. If we at least could force our elected representatives to do what we tell them, then these folks would have a case for claims of democracy, but like you said. There are rules in place and the proper definition is a "Constitutional Republic"

And as Benjamin Franklin is attributed as saying when someone asking him what we had.

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In a democracy the people have control over government either directly or indirectly by voting on laws or by voting in people that enact they laws we want.

Our representatives are not required to vote on anything the way we want them. They can do what they want and all we can do is vote them back out. We cannot prosecute them, or criminally charge them, or force them to do anything.

We are not a democracy, we neither directly or indirectly control the Federal government. We control the Federal government as much as we can control it if it was a Monarchy!

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You're not "trying to stop ignorance", you're obsessing over a symbolic issue.

There is no disagreement here about the components of the US government or how they function. There isn't any debate either. Everyone is on the same page, with the same knowledge. You are just engaging in a gigantic argument over whether it's appropriate to apply one specific term to that government in any context - a term, I might add, that has no single monolithic consensus definition (hint: literally nobody who is seriously studying any field other than lexicography gets so obsessed with what the dictionary says about their specialty terms).

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Settle down man. We get it, you're a brilliant revolutionary, tearing down our illusions and blah blah blah.

Guess what: nobody here is oblivious to the huge problems that exist in America's systems of government, or to the fact that democratic principles are frequently compromised by those problems.

They just aren't interested in your little narcissistic crusade about whether to use the word democracy or not. But sure dude, if it makes you happy: you sound *super* cool and smart and insightful and edgy everything, great job.

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Yes, when I've decided I have nothing but contempt for someone's intellectual dishonesty or closed-mindedness, I make my mockery explicit and obvious. I guess other people prefer to say things like "I am just trying to help people to be less ignorant"

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The intellectual dishonesty if all on your side of the aisle.

You can levy the closed-minded accusation because it is true, my mind is closed to your style of bullshit, but I am by no means wrong or dishonest. You had to first lie to yourself to believe this load of horseshit.

You are facilitating the ignorance of your readers and performing a disservice to your readers by perpetuating a delusion.

Leigh, I am truly sad you lack the intellectual capacity to discuss this without relying on your corrupt dogma.

As someone that serves the news, it is important for you to have facts straight, and you just don't! Which is why you feel the need to resort to the mockery.

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There is a fundamental issue with the core of everything you say here:

You think it is a simple "fact" whether something is a democracy.

Sorry, democracy is a subjective term, and there's plenty of debate over what it actually means. And honestly, I don't even give much of a shit about that debate. You're the only one who does. You want to talk about the many many problems with the US government? You want to talk about the legacy of slavery and Jim Crow, the prison industrial complex, the war on drugs, government surveillance? Great! I think all of those are extremely serious issues too. (Not so sure about listing "having a Constitution" alongside those things, but hey, to each his own I guess. You must *really* hate America, which is fine - I'm not even American, and not a fan of mindless patriotism.)

But, you don't want to talk about those issues, do you? You wan't to berate people for even using the word "democracy" when talking about a government that, whether you like it or not, does indeed have many democratic components and has certain key principles of democracy ensconced in its supreme laws (i.e. that Constitution thing that you hate).

So make your little snide remarks about my intellectual capacity all you want. I know you think you're making brilliant, intelligent observations about the US, but I don't think very many people see it that way.

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"So trying to stop ignorance is a bad thing in your book?"

If you were interested in "stopping ignorance", you'd be calmly laying down facts, linking evidence and explaining why people are wrong. Instead, you've chosen name calling and whining about other people not knowing what you know.

That tells most people all they need to know about how honest you are, even if you are actually correct about your claims.

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Almost every single political scientist in the world agrees that the rule of law, and a court system for administering it, is in fact **a critical part** of a democracy. In fact it's one of the few widespread items of consensus on what the definition of democracy even is.

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Leigh, you are posing a strawman argument here.

If it not the fact that the court SCOTUS in this case exists that breaks the democracy, it is the fact that it has VETO POWER over law itself through the power to declare it unconstitutional! That is what breaks the democracy potential, and they are not elected by the people either, further removing democracy from the equation.

They don't have to do anything we tell them too, they only have to obey the Constitution and the Law. Neither Congress or the President can do shit to them until they break the law!

If you can remove the "veto power" of SCOTUS and the VETO power of the Executive branch then you will have some ground to stand on. As long as we have 3 equal branches of government Democracy can be overturned, meaning we do not have a democracy, no matter how much your delusions demand it!

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And the states through a convention as well.

Let me blow your mind.

Do they have to obey a single fucking desire of the American people to do that? No they don't!

They could hold a convention of states and turn entire classes of people in slaves again, can't they? Additionally it requires a 3/4 vote too... which guess what... is more that just a Democratic majority. Some even call it a "Super Majority".

do you want to know what else? not a single fucking citizen has to be involved either! If all the states wanted to get together make all elected officials into Dukes and Kings you can't stop them, they have the constitutional fucking power and democracy will not have a fucking thing to stop it.

You are so lost and deluded that you can't see straight.

News flash, the government is not beholden do you... all you can do is vote them in and hope they do what you want because you do not control them!

You don't have a democracy, you don't even have a representative democracy as you like to put it!

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No what you are doing is projecting your intellectual insecurities at us like a champ. You are just too pig ignorant to realise that, even when we lead you by the nose right to it. What’s truely funny is you think you are ohh so brilliant, instead of having the intellectual capacity of a snot nosed 13 year old.

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Allow me to re-blow your mind. I assume given your statements, you are a rabid fan and supporter of the Constitution. As such you must be aware of the 2nd Amendment and why it exists.

The 2nd Amendment was put in there as a direct check and balance against such a convention taking place and the people being enslaved. The threat of an armed citizen revolt is what keeps the government from doing just such a thing. And given the very active social justice movement, do you really think that if they changed our government to a monarchy and re-instituted slavery that there wouldn't be a revolt? If you do you are delusional and no can help you.

So yes, the government is beholden to the people, we have just allowed them to get away with their shenanigans for too long.

You want proof of democracy? The 2nd Amendment is about the strongest proof you can get. However, you are correct in that we are also a republic. I believe it was one of my grade school text books that called our system of government "a democracy within a republic". I find that to be an accurate description.

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I've been waiting for that citizens' insurrection over mass surveillance since Snowden. Ain't. Gonna. Happen.

One presumes this will continue for as long as "the important rights" remain. It seems to me that gun nuts would allow themselves to suffer the most awful tyrannies as long as a) they can keep their guns and b) they're being run from a corporation, not the government.

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First of all, I don't own a gun and am not a 'gun nut'.

Second of all, you're right. As long as our democratic process remains intact and the chance of changing the erosion of our rights by peaceful means is available, there will not be an insurrection. As screwed up and corrupt as our government is, the people still have the power to vote in different representatives who would actually change things.

But your statement is twisting my words to something I never said. I was referring to a dramatic change in government and treatment of people, not the selective abuse of our rights by the government when it suits their purposes.

We're talking about the government shredding the Constitution and instituting a total dictatorship with no representation of the people. THAT is what the 2nd Amendment is there to guard against and THAT is the point I was making to the resident idiot because THAT is what he was talking about. If the government had nothing in the way of retaliation to fear from the populace, then they could completely change our system of government as they wish, but because the people are armed, they do have something to fear in making such a drastic change.

So rest assured, you've made your point, you are correct, there will be no insurrection in my lifetime or likely in my children's or grandchildren's lifetimes. Because as long as we have a democratic process, there is hope of peaceful change. The moment peaceful change is no longer an option (and as I pointed out, that's a really high bar to clear) that is when the insurrection is likely to happen.

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Lawrence, he doesn't own a gun.

AC, the 2nd Amendment's "insurrection" purpose is void; your rights have been eroded to the point where there's a 100 MILE Constitution-free zone in your country and the police can nick your stuff at badgepoint or shoot you for sport.

There's no earthly point in using that argument because people aren't even using peaceful means to combat this crap on account of being far to the right of Kubla Khan. The reason? These tyrannies are used on the poor and the better off or the hoping to be better off don't give a rat's.

There will be no insurrection, and we'd be lucky if people even contact their Congresscritters over the problems we are facing now.

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Wendy, yes, I'm aware of the 100 mile Constitution-free zone, I happen to live in it.

Yet I don't see daily oppression or have my stuff nicked, nor have I ever been shot at. (nor have I even heard of any of those things happening within 50 to 100 miles of where I live) Does that stuff happen? Yes. But, I have to ask, are those incidents the rule, or the exception? Are they deplorable and horrendous and does something need to be done about it immediately? Yes! But just because some abuses occur, doesn't mean that is the status quo.

If your view of the US is that we are already living under a tyrannical government with all of our rights abused and oppressed on a constant, daily basis, I pity you. Is our country perfect? No, but it's damn well not the dumpster fire you make it out to be.

As for your assertion that people aren't even doing anything to change things, well then I think you're living in a nice little bubble of your own. There were over 22 million comments submitted to the FCC for net neutrality, yes some were fake bots but there were a whole lot that weren't. There were approximately 1 million unique comments and millions of other legitimate comments submitted via form letter. I'm sure a good portion of those people also contacted their congressmen.

All you have to do is look at the news for reports of people protesting or organizing marches or information campaigns for issues they care about. And you have the audacity to imply that these same people aren't using every means at their disposal to effect change, including contacting their representatives? Again, I pity you.

Does everyone contact their representatives? No. But I think it's a far cry from people simply sitting back and being apathetic about their rights being trampled on.

I'm sorry you have given up on our country but I and many other Americans have not.

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Correction: I realized after posting that the wording of your post indicates you are not from the US. My apologies for assuming you were.

Given that you are not from our country, I submit that you are basing your opinions solely on what you hear in the news. And while many incidents of such behavior do get media attention, they are by no means the rule, nor do they even account for a majority of peoples' experiences in that 100 mile zone. They just happen to get the most attention because of how bad they are.

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I agree with you completely. People need to be more compassionate to their fellow man and that would solve a good many issues.

That does not, however, invalidate any of my points about the purpose of the 2nd Amendment, or its validity. Even if people cared more about each other, it would still be a good thing to have around. It only takes one, or a few, people to make life miserable for everyone.

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See, if the courts couldn't overturn the decisions of the elected representatives, then that would mean that elected representatives are above the law - and that would disqualify a government from being called a democracy.

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Let me spell it out for you.

Your class was wrong, and you are apparently able to believe a bunch of bullshit despite facts and evidence to the contrary.

for you, America is a democracy despite having a Constitution, a history of slavery, Jim Crow laws, largest number of prisoners, innocents in jail, a war on recreational drugs, full spying, secrete laws, and a court that can rules laws voted in by representatives as unconstitutional.

That is not being smart, that is excepting a delusion for political expediency!

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Bush II & Friends turned the country into a torture state. Nevertheless he was democratically re-elected, by a greater margin than before.

During the 2012 election Republican candidates Bachmann, Cain, Perry and Santorum each called for torture to resume. Mr. Romney's advisers privately urged him to call for a resumption of torture. (Presumably Ron Paul thought that torture is an issue that should be left to the states.) Not only did this not cause a scandal or hurt their chances within the Republican Party, but there wasn't a hint of a scandal about it by the Democrats or the general public.

Democracy doesn't fix everything. Sociopaths and demagogues can still be democratically elected. When the majority democratically elects a torturer, they don't cease to be a democracy.

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"Instead they vote in representatives"

That would be called a republic, not a democracy.

Nope. Canada for example, a Parliamentary Democracy, votes in representatives. "Members or Parliament" (MPs) at the federal level, and others at the provincial and municipal level. Canadians don't get a direct vote for a Prime Minister; their representatives, the MPs, do.

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A democracy is "one man, one vote", not "one state, $x electors". Sparsely populated areas get more presidential voting influence per voter than crowded areas. A voter in Little Rock counts more than a voter in Los Angeles.

Re: "Fire and Fury"

Have you noticed? Trump NEVER sues

He's threatened lawsuits many times over the past few years, and -- to date -- he's filed none.

It's not because he lacks belligerence: that's on display every day. It's not because he lacks legal counsel: he has attorneys. It's not because he can't afford it: even though most of his wealth is fake, he has enough to pay legal costs.

'Bow to my demands, or I'll send you more angry letters!'

That's the thing about bluffs and empty threats, when your target knows you won't follow through they're about as effective as shaking your fist at them.

He doesn't dare sue, they know it, he knows it, so the best he can do is whine about how mean they're being and issue angry statements about how unspecific things that they said aren't true(without, of course, stating what specifically they got wrong)

All he's really doing is giving the publisher and book the kind of PR boost money simply cannot buy, such that he would have been much better off keeping his mouth shut and just ignoring it. Since he's incapable of doing that however, free PR it is.

Thank you for your submission, but there seems to have been a misunderstanding.
While we are indeed a publisher, we are currently not seeking works of amateur creative fiction at this time.
Better luck elsewhere.